Criminal Appeal No.45 of 2010

21st September, 2011

Petitioner Counsel: Shri A.J. Thakkar
Respondent Counsel: Shri M. A. Kadu

Cases Cited:
Prasad Uttam Mainkar Vs. State of Goa, 2002 ALL MR (Cri) 1043 [Para 24]
Tukaram and another Vs. The State of Maharashtra, 1978 Cr.L.J.1864 [Para 25]
Pratap Mishra and others Vs. State of Orissa, AIR 1977 SC 1377 [Para 26]

JUDGMENT

JUDGMENT :- Heard. Appeal is admitted.

2. This appeal is filed by the accused of Sessions Trial No. 348/2008 against his conviction for the offence punishable under Section 376 (1) of the Indian Penal Code ("I.P.C. for short) and sentence to suffer rigorous imprisonment ("R.I." for short) for seven years and to pay fine of Rs.1600/- in default to suffer R.I. for 40 days.

3. The accused was tried for the said offence with the allegation as under:

[i] The prosecutrix, a married woman of about 33 years of age was residing with her husband, children and mother-in-law at Kalamana and the accused was her neighbour residing with his children. The wife of the accused had died about 1½ months prior to the incident.

[ii] On 2.5.2008 at about 1.30 p.m. all the family members of the prosecutrix had gone out of the village for attending marriage of their relatives. After completing the work in the field, the prosecutrix had returned back home and was alone. She went to provide water to bullocks which were tied in the cow-shed near her house. When the prosecutrix was providing water, the accused came from backside caught hold of her waist, dragged her and took her inside the cowshed.

[iii] The prosecutrix shouted loudly and gave abuses to the accused but the accused did not pay attention and forcibly removed her nicker, committed sexual intercourse with her and ran away.

[iv] At about 3.00 p.m. husband of the prosecutrix returned back home and she narrated the incident to him, after which oral report was lodged by her at Umrer Police Station.

4. Crime was registered and investigation was set in motion. The prosecutrix was medically examined and her clothes, samples of blood, hair, vaginal swab etc., were seized by the Investigating Officer, who also prepared the spot panchanama and recorded the statements of the witnesses. The accused was arrested and was medically examined and his clothes, samples of blood, hair, semen etc. were also seized. Charge-sheet was then filed against the accused for offence punishable under Section 376(1) of I.P.C.

5. The prosecution examined eight witnesses in support of its case. PW 1 Gajanan Mudgal prepared the map of spot of incident on 6.5.2008, which map is at Exh.25. PW 2 Gurudeo Gajghate, acted as one of the panch witnesses for the panchanama of spot of occurrence and the panchanama of seizure of clothes of the prosecutrix, which are at Exhibits 27 and 28 respectively. PW 3 is the prosecutrix and Exh. 30 is the oral report lodged by her. PW 4 Vinayak Gaikwad is husband of the prosecutrix. PW 5 Manoj Gaikwad is an eye witness to the incident. PW 6 Dr. Bhagyashri Wanjari examined the prosecutrix and issued certificate which is at Exh. 44. PW 7 Ganesh Khaparde is Police Officer then working at P. S. Umrer and he recorded oral report of the prosecutrix and registered F.I.R. and also seized clothes and other articles of the prosecutrix. Lastly, PW 8 Mohan Kakade is the Police Sub Inspector, then working at Umrer Police Station. He conducted investigation in the case and filed charge-sheet against the accused.

6. Upon consideration of the entire evidence on record, the learned Trial Judge has held as under:

[i] The evidence of PW 3, PW 4 and PW 7 proves that the incident occurred at 1.30 p.m. and the prosecutrix lodged report on the very day without any delay.

[ii] The medical evidence given by PW 6 fully supports the prosecution story and forcible sexual intercourse by the accused on the prosecutrix in the noon of 2.5.2008.

[iii] The evidence of the prosecutrix (PW 3) is true and reliable and is solely sufficient to prove the guilt of the accused.

7. In view of the above, the accused came to be held guilty and convicted of the offence punishable under Section 376(1) of the I.P.C. and sentenced as stated earlier.

8. Heard arguments. Learned Advocate Shri A.J. Thakkar argued on behalf of the accused whereas learned APP Shri M. A. Kadu argued on behalf of the State.

9. Perused the entire record and proceedings.

10. PW 3, the prosecutrix, has deposed as follows:

"1) I know accused. On 02/05/2008 at about 1.30 p.m. my husband, son and mother-in-law had gone outside for attending the marriage. I had been to labour work in the field of Sakharam Mohatkar. At about 1.30 p.m. I had returned back to home. I went towards cow shed for providing water to bullocks. Accused came from backside and caught hold of waist. I gave him abuses in loud voice. But he did not pay attention and he committed sexual intercourse with me. Then he fell me down in the corner. I am feeling backache as accused forcibly fell me on ground.

2) Then after about 3.00 p.m. my husband came at home. I told him about the incident and then we went to Police Station. There I gave information about incident police recorded the same. The "Oral Report" now shown to me is same. It bears my signature. Its contents are true and correct. It is marked as Exh.30."

11. The above testimony of the prosecutrix reveals that the prosecutrix only gave abuses in loud voice when the accused caught her from backside. She does not say that she resisted or raised alarm when the accused was committing sexual intercourse with her. The expression "he committed sexual intercourse with me" does not provide any details required for understanding the incident properly.

12. In her cross-examination, however, PW 3 has stated that the accused came from her backside and forcibly caught her and she shouted loudly and also gave abuses to him and the accused removed his nicker and committed sexual intercourse. In the cross-examination, PW 3 has stated that the accused first felled her down and then committed sexual intercourse with her. She has further stated that she resisted the accused when he was removing her nicker. She has further stated that when she had fallen on the ground the accused tried to remove her nicker and at that time she caught hold of her nicker. She has stated that she used to wear 8 to 10 bangles in her hands and the accused had tried to remove her hand with which she had caught her nicker. In the cross-examination, PW 3 has further stated that accused took her in the cowshed by pulling her and her legs were rubbing to the ground. She has stated that she sustained injuries on her back and waist and that her clothes were not torn except the nicker. Thus, the evidence of PW 3 in her cross-examination reveals violence and the fact that she had sustained injuries.

13. PW 4, husband of the prosecutrix, has deposed that when he returned back home at about 3.30 p.m., his wife told him that at about 1.30 p.m., she was providing water to bullocks when accused Digambar came, caught hold of her waist, pushed her in the cowshed, felled her on the ground, forcibly removed her nicker and committed forcible sexual intercourse with her. He has further stated that they went to police station and his wife lodged the report against the accused. In his cross-examination, PW 4 has stated that he had seen injuries on the back of his wife and mud on her clothes.

14. However, the medical evidence clearly falsifies the evidence of PW 3 and PW 4 regarding injuries sustained by PW 3. The medical evidence reveals that PW 3 had not sustained any injury to her back or waist or legs etc.

15. PW 8, the investigating officer has stated in his cross-examination that he did not observe any kind of stains of blood or semen on the clothes of the accused. He also did not observe any kind of stains of blood or soil on the clothes of the prosecutrix. He did not find any pieces of bangles on the spot. He did not observe any scratch marks or marks of injury on the waist or back of the prosecutrix, mentioned in the medical examination report of the prosecutrix. Thus, the evidence of the investigating officer(PW 8) also falsifies the evidence of PW 3 and PW 4 about injuries and soiled clothes of the prosecutrix, etc.

16. The report of the chemical analysis has not been produced on record and no explanation for nonproduction has been given.

17. PW 5 Manoj Gaikwad has stated that he knows prosecutrix as neighbour and also knows the accused and on the date of incident at about 1.30 p.m., he had provided water to bullocks in his cow-shed and at that time he heard noise of weeping from the cow-shed belonging to Vinayak and he went there and saw that the accused was sleeping on the person of the prosecutrix and that the accused was committing sexual intercourse with her. PW 5 has stated that when the accused heard his noise, the accused ran away towards his house.

18. PW 5 has made material improvements in his testimony by saying that he saw the accused committing sexual intercourse with the prosecutrix and that he made noise due to which the accused ran away. PW 5 has been confronted with the portion marked "A" in his police statement and PW 5 has admitted that the said statement is true. At portion marked "A", PW 5 has stated to the police that subsequently he came to know that the prosecutrix had gone to give water to her bullocks when the accused caught her and forcibly took her in cow-shed and committed forcible intercourse on her. PW 5 did not state to the police that he had actually seen the intercourse or that he had made noise or that the accused had run away.

19. The prosecutrix (PW 3) in her cross-examination has stated that when the accused was committing forcible intercourse with her, one Manu Gaikwad had come there and she saw him while going outside. According to PW 3, accused was committing forcible intercourse with her till the time Manu Gaikwad went away. PW 3 does not say that Manu Gaikwad made noise and on hearing the said noise, the accused ran away.

20. Therefore, there is even no corroboration between the testimonies of PW 3 and PW5, on material aspects.

21. PW 6 Dr. Bhagyashri Wanjari examined the prosecutrix on 2.5.2008 and she did not observe any external injury on her body but found an abrasion over fourchette and another abrasion on internal side of right labia without any bleeding. She has opined that the patient was raped, as coitus was done forcefully and that the duration of coitus was about 4 to 5 hours because no fresh bleeding was found and the injury was not filled in. In her cross-examination PW 6 has stated that she did not observe any marks of violence over other parts of body of prosecutrix.

22. An opinion that because coitus was done forcefully, the patient was raped, does not appear to be correct. The forceful coitus, in respect of a female, who is major in age, would amount to rape, if the same is done without her consent or against her will. Therefore, merely because there was forceful action, it cannot be automatically held that there was rape.

23. The evidence of PW 3, the prosecutrix and that of her neighbour i.e. PW 5 suggests that there was consentaneous sexual intercourse between PW 3 and the accused but as PW 5 who is the neighbour of PW 3 saw them in compromising position, the prosecutrix had to lodge the complaint.

24. It is true that the accused had not specifically taken defence of consent. However, from the evidence on record, it can be gathered that there was consent. In the case of "Prasad Uttam Mainkar Vs. State of Goa" [(2002 ALL MR (Cri)1043], the learned Single Judge of this Court has held that benefit of defence of consent is available to accused despite the fact that he had not specifically taken that defence, if it can be established from evidence on record.

25. In the case of "Tukaram and another Vs. The State of Maharashtra" (1978 Cr.L.J.1864), relied upon by Shri A.J. Thakkar, learned counsel for the accused, the Hon'ble Apex Court has held that the circumstances negativing existence of "fear" and story of "passive submission" make the accused entitled to be acquitted.

26. In the case of "Pratap Mishra and others Vs. State of Orissa" (AIR 1977 SC 1377), also relied upon by Shri A.J. Thakkar, the learned counsel for the accused, the prosecutrix was grown up and experienced pregnant lady and the allegation was that three accused had forcible and violent sexual intercourse with her one after other in quick succession resulting in her abortion 4-5 days thereafter. It has been held that absence of any injury on any of the accused or on prosecutrix except some bleeding from vagina gives rise an inference of consent of prosecutrix.

27. Paragraph 36 of the impugned Judgment reveals that the learned trial Court has invoked the presumption as to the absence of consent on the ground that the accused did not produce sufficient evidence to rebut that presumption and thus has held the accused guilty. The learned trial Court does not appear to have properly read the provision of section 114-A of the Evidence Act. Said provision applies to a prosecution for rape under Cl. (a) or Cl. (b) or Cl. (c) or Cl. (d) or Cl.(e) or Cl. (g) of sub-section (2) of section 376 of the I.P.C.

The present case is for offence under sub-section (1) of section 376 of I.P.C. The said presumption under section 114-A of the Evidence Act could not have been invoked by the trial Court.

28. In view of the discussion supra, in my view, the prosecution has not proved the guilt of the accused beyond reasonable doubt. The impugned Judgment and Order, therefore, cannot sustain.

29. In the result, the appeal is allowed.

(i) The impugned Judgment and Order is quashed and set aside.

(ii) The accused is acquitted of the offence punishable under section 376 of I.P.C.

(iii) The accused shall be released forthwith, if not required in any other case.

(iv) The muddemal property shall be destroyed, after the appeal period is over.

The appeal is allowed in the aforesaid terms.

Appeal allowed.